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Misdemeanor convictions in Colorado could call for DNA swab

The Colorado Bureau of Investigation's DNA extraction robot is seen in this 2009 file photo. (Joe Amon, The Denver Post file)

Rep. Dan Pabon, the bill's sponsor (Provided by the Colorado General Assembly)

Whether it's an assault or a relatively minor offense such as destroying a library book, Coloradans convicted of a misdemeanor would have to open wide and say "aaagh," should lawmakers pass a requirement that the state collect from them an oral DNA sample.

In what's billed as an ambitious effort to solve cold cases, exonerate those wrongfully convicted and quell future crimes, a Democratic state lawmaker wants to require that individuals convicted of Class 1, Class 2 or Class 3 misdemeanors must submit a DNA sample to be stored in a statewide database system.

But this effort to expand DNA collection to misdemeanor convictions has raised concerns about privacy issues and the rationale behind such a requirement.

"DNA is the 21st century fingerprint," said Rep. Dan Pabon, a Denver Democrat, who is the sponsor of the legislation that's set to be heard before a House committee Thursday. " We have become so sophisticated in our technology and science, we can without a shadow of a doubt link someone physically to a crime."

Already in Colorado, individuals arrested on a felony charge and some misdemeanors involving unlawful sexual conduct are required to provide the state with a DNA sample. And those convicted of a misdemeanor under the proposed legislation would have to pay a $128 fee to cover the costs of the sample.

Late Wednesday afternoon, after The Denver Post reported about Pabon's bill online, the sponsor said he would offer an amendment to the measure that would only require Class 1 misdemeanors be swabbed.

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However, though Pabon is targeting most misdemeanor offenses, his legislation does not require those convicted of misdemeanor traffic offenses — such as DUIs — to submit oral samples.

"We don't have the statistics that demonstrate just because you're drinking and driving that you have a propensity to commit more serious crimes," Pabon said. "With respect to theft crimes, assault crimes, those involving the objectification of a person ... those types of crimes indicate that you're going to commit more serious crimes."

Denise Maes, public policy director at the American Civil Liberties Union of Colorado, said it's a false assumption to conclude that any person who commits a low-level misdemeanor will commit more serious crimes in the future.

"This encroaches on an individual's privacy," said Maes, who will offer testimony on Thursday in opposition to the bill. "Further, listen carefully to the rationale supporting this bill: 'Collecting DNA helps solve crime.' There is no end to this mission. One may facetiously say 'just chip us at birth,' but in reality this is precisely where the rationale of the proponents naturally leads us to."

Colorado, were the measure to pass, would join only New York — which passed a similar measure expanding DNA samples for all misdemeanors in 2012 — as states that call for DNA submissions with misdemeanor convictions.

In 2006, New York legislation allowed for DNA samples to be collected for some misdemeanors that range from petit larceny — such as shoplifting — to assault and criminal trespassing.

Of the more than 3,300 hits resulting from DNA expansion since then, 32 percent came from petit larcenies and were connected to other, more dangerous felony offenses, according to New York's Division of Criminal Justice Services.

Denver District Attorney Mitch Morrissey, a staunch proponent of the measure, said expansion will lead to more hits related to felonies in Colorado and around the nation.

Morrissey's office points to DNA sampling involved in the arrest of Eddie Simon last month. Simon was arrested on a felony drug charge. After his DNA was taken, a match was made in connection to the cold-case rape of a Denver woman in 2001. Simon has since been charged by Morrissey's office with second-degree kidnapping, two counts of sexual assault and third-degree assault.

Pabon said Wednesday the measure has bipartisan support, though some members of his own party assail the legislation as a severe overreach and question storage of the DNA.

"When you take DNA evidence from somebody that is completely unrelated to a crime, you're basically creating a database that can be searched at will and without warrant into the future," said Senate Majority Leader Morgan Carroll, a Democrat from Aurora. "It's a serious intrusion into to privacy to keep a government-run database ... this is a slippery slope, and we don't have the oversights in place to do it responsibly."

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